This act was enacted along with the Loss or Retention of Membership of National and Provincial Legislatures Act, 2002, an act which purported to allow members of the National Assembly and the provincial legislatures to cross the floor — to move from one political party to another without losing their seats — at certain times between general elections. This constitutional amendment act regulated the reallocation of seats that would occur in the National Council of Provinces as a result of floor-crossing in the provincial legislatures. However, the Loss or Retention of Membership of National and Provincial Legislatures Act was held to be unconstitutional by the Constitutional Court in the case entitled United Democratic Movement v. President of the Republic of South Africa and Others. In 2003 Parliament passed the Constitution Tenth Amendment Act of 2003, which amended the constitution to allow floor-crossing, and this act then came into effect to regulate its effects on the NCOP. The changes made by this act were later reversed by the Constitution Fourteenth Amendment Act of 2008 when floor-crossing was ended.

To amend the Constitution of the Republic of South Africa, 1996, in order to regulate the allocation of delegates to the National Council Provinces in the event of changes of party membership, mergers between parties, subdivision of parties or subdivision and merger of parties within a provincial legislature; and to provide for matters connected therewith.

Whereas the National Council of Provinces is composed of a single delegation from each province consisting of six permanent and four special delegates;

and whereas parties represented in a provincial legislature are entitled to delegates in the province's delegation, and national legislation must determine how many of each party's delegates are to be permanent delegates and how many are to be special delegates;

the manner in which it will be possible for a member of a national or a provincial legislature who ceases to be a member of the party which nominated that member, to retain membership of such legislature; and

any existing party to merge with another party, or any party to subdivide into more than one party, or to subdivide and any one of the subdivisions to merge with another party, whilst allowing a member of a legislature affected by such changes, to retain membership of such legislature;

and whereas in terms of the national legislation in question, changes of party membership, mergers between parties or subdivision of parties or subdivision and merger of parties within a provincial legislature, may necessitate changes in respect of that legislature's delegation to the National Council of Provinces,

Be it therefore enacted by the Parliament of the Republic of South Africa, as follows:—

Amendment of section 61 of Act 108 of 1996

1.Section 61 of the Constitution of the Republic of South Africa, 1996, is hereby amended by the substitution for subsection (2) of the following subsection:

“(2) (a) A provincial legislature must, within 30 days after the result of an election of [a provincial]that legislature is declared [the legislature must]—

[(a)](i) determine, in accordance with national legislation, how many of each party's delegates are to be permanent delegates and how many are to be special delegates; and

[(b)](ii) appoint the permanent delegates in accordance with the nominations of the parties.

(b) If the composition of a provincial legislature is changed on account of changes of party membership, mergers between parties, subdivision of parties or subdivision and merger of parties within that legislature, it must within 30 days after such change—

(i)determine, in accordance with the national legislation referred to in paragraph (a), how many of each party's delegates are to be permanent delegates and how many are to be special delegates; and

(ii)appoint the permanent delegates in accordance with the nominations of the parties.”.

Amendment of section 62 of Act 108 of 1996

2.Section 62 of the Constitution of the Republic of South Africa, 1996, is hereby amended by the substitution for subsection (3) of the following subsection:

“(3) Permanent delegates are appointed for a term that expires—

(a) immediately before the first sitting of a provincial legislature after its next election; or

(b)on the day before the appointment of permanent delegates in accordance with section 61(2)(b)(ii) takes effect.”.

Amendment of Schedule 3 to Act 108 of 1996, as amended by section 2 of Act 3 of 1999 and section 19 of Act 34 of 2001

3.Schedule 3 to the Constitution of the Republic of South Africa, 1996, is hereby amended by the substitution for item 3 of Part B of the following item:

3. If the competing surpluses envisaged in item 2 are equal, the undistributed delegates in the delegation must be allocated to the party or parties, including any merged party as contemplated in section 61(2)(b), with the same surplus in sequence of votes recorded, starting with the party or merged party which recorded the highest number of votes, including combined votes in the case of a merged party, during the last election for the provincial legislature concerned, but if any of the parties with the same surplus—

(a)came into existence on account of changes of party membership or subdivision of parties within that legislature as contemplated in section 61(2)(b); and

(b)did not participate in the last election for the provincial legislature concerned,

the legislature must allocate the undistributed delegates in the delegation to the party or parties with the same surplus in a manner which is consistent with democracy.”.

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